Wrongful Death Matters

Who has standing to bring a wrongful death case.

Only those persons described in Code Civ. Proc. § 377.60, or a personal representative on behalf of those persons, may maintain a wrongful death action [Code Civ. Proc. § 377.60; see §§ 181.142-181.145]. The right to bring a wrongful death action is strictly limited to those persons described by the statute [ Von Batsch v. American Dist. Tel. Co. (1985) 175 Cal. App. 3d 1111, 1119, 222 Cal. Rptr. 239 (interpreting former Code Civ. Proc. § 377 (now see Code Civ. Proc. § 377.60))]. However, Code Civ. Proc. § 377.60 specifically provides that its enactment in 1992 was not intended to eliminate the standing of persons who had standing under former Code Civ. Proc. § 377 [Code Civ. Proc. § 377.60(e)].

Under prior law, a complaint for wrongful death had to show that the decedent left heirs at law [ Carr v. Progressive Cas. Ins. Co. (1984) 152 Cal. App. 3d 881, 887 n.2, 199 Cal. Rptr. 835 ; Estate of Bright v. Western Air Lines (1951) 104 Cal. App. 2d 827, 830, 232 P.2d 523 (interpreting former Code Civ. Proc. § 377 (now see Code Civ. Proc. § 377.60))].

A person who feloniously and intentionally kills a decedent may not bring a wrongful death action or benefit from an action brought by the decedent’s personal representative [Prob. Code § 258 (effective January 1, 1993)]. Before 1993, the Probate Code generally prohibited a person who feloniously and intentionally killed a decedent from succeeding to benefits, interest, or property accruing due to the decedent’s death [see Prob. Code §§ 250-253].

[2] Statutory Categories of Plaintiffs

For the purposes of Code Civ. Proc. § 377.60, there are three categories of persons entitled to bring a wrongful death action. The first category consists of the decedent’s surviving spouse, domestic partner, children, and issue of deceased children or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession [Code Civ. Proc. § 377.60(a); see Prob. Code § 6400 et seq. (governing acquisition of title to property of one who dies without disposing of it by will)]. A person survives the decedent for these purposes if the person outlives the decedent, even if that person dies before actually filing a wrongful death action, in which case the cause of action survives and may be brought by that person’s personal representative or successor in interest [ Chavez v. Carpenter (2001) 91 Cal. App. 4th 1433, 1441-1444, 111 Cal. Rptr. 2d 534 (because daughter outlived decedent, but died one month later before suit was filed, decedent’s parents had no standing as heirs to bring wrongful death suit)].

The right to sue as a surviving domestic partner, which was added as a plaintiff class effective in 2002, is limited to members of the same sex over the age of 18 and opposite-sex couples in which at least one person is over the age of 62 and meets the eligibility criteria for old-age social security benefits [Fam. Code § 297(a), (b)(4), (5); see Code Civ. Proc. § 377.60(f)]. In addition, those partners who meet the criteria for a formal domestic partnership must still register as a domestic partnership with the Secretary of State to acquire the rights of a recognized domestic partnership [Fam. Code § 297(b)], although domestic partners otherwise meeting the statutory criteria may sue for wrongful death, even without registration, if the death occurred prior to 2002 [see Code Civ. Proc. § 377.60(f)(2), (3)]. A party must register with the Secretary of State to acquire rights under the Domestic Partnership Act [ Armijo v. Miles (2005) 127 Cal. App. 4th 1405, 1414, 26 Cal. Rptr. 3d 623] .

One court of appeal decision has held that domestic partners who have failed to comply with the registration requirements, but who held a reasonable, good-faith belief that they had registered with the Secretary of State, are entitled under the putative spouse doctrine, discussed below, to the same rights granted to domestic partners who have properly registered [ In re Domestic Partnership of Ellis & Arriaga (2008) 162 Cal. App. 4th 1000, 1008-1009, 76 Cal. Rptr. 3d 401 ]. The court in that case distinguished an earlier decision in which the court of appeal held that the putative spouse doctrine could not be applied when the domestic partners had registered only with the city and had made no attempt to register with the Secretary of State [ In re Domestic Partnership of Ellis & Arriaga (2008) 162 Cal. App. 4th 1000, 1009-1012, 76 Cal. Rptr. 3d 401 (distinguishing holding in Velez v. Smith (2006) 142 Cal. App. 4th 1154, 48 Cal. Rptr. 3d 642 )].

The statutory right to sue for deaths occurring prior to January 1, 2002, which was added by legislative amendment effective January 1, 2005, has been applied retroactively by the court of appeal to actions filed prior to the amendment that were not yet finalized by the effective date of the amendment [ Armijo v. Miles (2005) 127 Cal. App. 4th 1405, 1409, 26 Cal. Rptr. 3d 623 ; Bouley v. Long Beach Mem’l Med. Ctr. (2005) 127 Cal. App. 4th 601, 607-608, 25 Cal. Rptr. 3d 813] .

Unmarried cohabitants who do not meet these criteria do not have standing to sue for wrongful death [ Holguin v. Flores (2004) 122 Cal. App. 4th 428, 435-437, 18 Cal. Rptr. 3d 749] . The legislative decision not to provide the right to sue for wrongful death to all opposite-sex couples who cohabit is justified by the fact that other opposite-sex couples have the right to marry, thus establishing their status as spouses, and will not suffer adverse social security consequences for doing so. The court of appeal has upheld this distinction against a constitutional equal protection challenge [ Holguin v. Flores (2004) 122 Cal. App. 4th 428, 437-443, 18 Cal. Rptr. 3d 749] .

Under prior law, all persons entitled to the decedent’s property by intestate succession were included in this category, without distinguishing the decedent’s surviving spouse, children, and issue of deceased children from other potential heirs by intestate succession [see former Code Civ. Proc. § 377(b)(1); California State Auto. Ass’n, Inter-Ins. Bureau v. Jacobson (1972) 24 Cal. App. 3d 850, 853, 101 Cal. Rptr. 366 ; Kunakoff v. Woods (1958) 166 Cal. App. 2d 59, 62, 332 P.2d 773] . To be an heir by intestate succession, a person must show that he or she was entitled to succeed to some part of the estate at the time decedent died. For example, the mother of a deceased son was held not to be an heir under former Code Civ. Proc. § 377(b)(1) (now see Code Civ. Proc. § 377.60(a)), because the son left a surviving spouse and living children who would succeed to his estate under the succession statutes before the estate devolved to the mother [ Evans v. Shanklin (1936) 16 Cal. App. 2d 358, 362, 60 P.2d 554] . Further, a more remote relative may not rely on other provisions of the Probate Code to discount the otherwise-entitled heir under intestacy and to step up as the person entitled to bring the wrongful death action [see Lewis v. Regional Ctr.of E. Bay (1985) 174 Cal. App. 3d 350, 352-355, 220 Cal. Rptr. 89 (disclaimer of decedent-child’s parents and siblings to all interest in estate does not elevate grandparents as heirs entitled to bring wrongful death action)].

Despite somewhat ambiguous statutory language, under the current provisions enacted effective January 1, 1993, the laws of intestate succession still determine whether standing to bring a wrongful death action exists under the first category described above [ Cheyanna M. v. A.C. Nielsen Co. (1998) 66 Cal. App. 4th 855, 864-865, 78 Cal. Rptr. 2d 335]

. The purpose of the 1992 amendment was to clarify that a decedent’s children and issue of deceased children may maintain a wrongful death action even if the decedent’s entire estate passes to a surviving spouse under community property laws [ Cheyanna M. v. A.C. Nielsen Co. (1998) 66 Cal. App. 4th 855, 864-865, 78 Cal. Rptr. 2d 335] . California laws of intestate succession govern who may bring a wrongful death action in California, even if a foreign plaintiff is an heir under foreign law [ Rosales v. Battle (2003) 113 Cal. App. 4th 1178, 1184-1185, 7 Cal. Rptr. 3d 13] .

Under the laws of intestate succession found in the Probate Code, a relationship of parent and child exists between a person and the person’s natural parents, regardless of the marital status of the natural parents [Prob. Code § 6450(a)]. If a paternity dispute exists, paternity may be established by clear and convincing evidence that the father has openly held out the child as his own [Prob. Code § 6453(b)(2)]. If it was impossible for the father to have held the child out as his own, the paternity of the biological father may be established by any clear and convincing evidence [Prob. Code § 6453(b)(3)]. For purposes of establishing the paternity of a child born after the death of the alleged father, it is deemed to be impossible for the decedent to have held the as-yet-unborn child out as his own, and thus, the child may subsequently attempt to prove paternity through any clear and convincing evidence [ Cheyanna M. v. A.C. Nielsen Co. (1998) 66 Cal. App. 4th 855, 874, 78 Cal. Rptr. 2d 335] . The Probate Code also specifies procedures for establishing the paternity of a child who is conceived, after the death of the father, with the father’s preserved genetic material [see Prob. Code §§ 249.5, 6453©].

If a child is born out of wedlock, a natural parent may not inherit from or through the child on the basis of the parent-child relationship unless the parent acknowledged the child, and contributed to the child’s support or care [Prob. Code § 6452]. Thus, to bring a wrongful death action for a child born out of wedlock, a father must have acknowledged the child, but the acknowledgment need not be after the child’s birth, nor in a written and witnessed document [see Lozano v. Scalier (1996) 51 Cal. App. 4th 843, 844, 848, 59 Cal. Rptr. 2d 346 (plaintiff, who signed medical form identifying himself as child’s father five months before child’s birth, and who orally represented himself as child’s father after child’s birth, was entitled to maintain wrongful death action)].

If a court order finally and conclusively terminates the relationship between a birth parent and his or her child, that child loses standing to sue for the wrongful death of that parent, regardless of whether the child has been adopted by another at the time of the birth parent’s death [ Jackson v. Fitzgibbons (2005) 127 Cal. App. 4th 329, 335, 25 Cal. Rptr. 3d 478 ; see also Phraner v. Cote Mark, Inc. (1997) 55 Cal. App. 4th 166, 171, 63 Cal. Rptr. 2d 740 (because adoption severs relationship between child and birth parent, adopted child has no standing to sue for wrongful death of birth parent)].

If a court order has terminated the parental rights of a child’s biological parents, a biological grandparent has standing to bring a wrongful death action after the death of the child, at least if the termination order had no effect on the legal rights of the grandparent with respect to the child and the child had not been adopted at the time of death [see Fraizer v. Velkura (2001) 91 Cal. App. 4th 942, 946-947, 110 Cal. Rptr. 2d 918] .

The second category of persons entitled to bring a wrongful death action includes, if they were dependent on the decedent, a decedent’s putative spouse, children of the decedent’s putative spouse, stepchildren of the decedent, and parents of the decedent, whether or not these persons were qualified under Code Civ. Proc. § 377.60(a) [Code Civ. Proc. § 377.60(b); see § 181.144]. For the purpose of this provision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to believe in good faith that the marriage to the decedent was valid [Code Civ. Proc. § 337.60(b)]. To establish dependency, it appears that, at least with respect to parents, the person must have been actually dependent to some extent on the decedent for the necessities of life at the time the decedent died. It is not sufficient that the parent relied on the decedent for comfort and affection and for support and pecuniary advantages to which he or she may have been entitled in the future [ Hazelwood v. Hazelwood (1976) 57 Cal. App. 3d 693, 698, 129 Cal. Rptr. 384 (interpreting former Code Civ. Proc. § 377(b)(2) (now see Code Civ. Proc. § 377.60(b)))]. A former spouse, even if dependent on the deceased for support, is not entitled to bring a wrongful death action [ Villacampa v. Russell (1986) 178 Cal. App. 3d 906, 910, 224 Cal. Rptr. 73] .

The third category of persons entitled to bring a wrongful death cause of action includes any minor, whether or not qualified as a plaintiff under Code Civ. Proc. § 377.60(a) or (b), who resided for the 180 days prior to a decedent’s death in the decedent’s household and who was dependent on the decedent for one-half or more of his or her support [Code Civ. Proc. § 377.60(c) (restating former Code Civ. Proc. § 377(b)(3))].

A wrongful death action may not be brought by or on behalf of persons who are merely potential heirs under the laws of intestate succession [see Prob. Code § 6402] if actual heirs at law exist [see Mayo v. White (1986) 178 Cal. App. 3d 1083, 1090, 224 Cal. Rptr. 373 (interpreting former Code Civ. Proc. § 377(b)(1) (now see Code Civ. Proc. § 377.60(a)); entitled persons include, but are not limited to, certain heirs)]. Any attempted renunciation of heirship or disclaimer of interest in the decedent’s estate [see Prob. Code § 275 et seq.] by the actual wrongful death plaintiffs who are heirs does not alter this rule because (1) the action for wrongful death is not an asset in the decedent’s estate and hence is not affected by the disclaimer; and (2) if it were affected by the disclaimer, the disclaimer would be an invalid attempt to assign a nonassignable cause of action [ Mayo v. White (1986) 178 Cal. App. 3d 1083, 1088-1091, 224 Cal. Rptr. 373 (interpreting former Code Civ. Proc. § 377(b)(1) (now see Code Civ. Proc. § 377.60(a)); entitled persons include, but are not limited to, certain heirs)].

[3] Personal Representation

If decedent’s personal representative (executor or administrator) brings the action, he or she acts solely in the capacity of a statutory trustee to recover damages for the benefit of persons entitled to a wrongful death cause of action based on their relationship to the decedent, and as such, has no interest in the matter [ Jones v. Leonardt (1909) 10 Cal. App. 284, 286, 101 P. 811] . No prejudice to defendants occurs if the entitled persons themselves are substituted as plaintiffs in lieu of the personal representative [ Everett v. Howard Buick Co. (1936) 15 Cal. App. 2d 544, 545-546, 59 P.2d 506] or if a general administrator or executor is substituted for a special administrator who had commenced the wrongful death action [ Ruiz v. Santa Barbara Gas & Elec. Co. (1912) 164 Cal. 188, 193, 128 P. 330] .

Compensation For a Serious Tragedy

If you have lost a family member in a personal injury accident, no amount of money can properly compensate you. Wrongful death claims are incredibly challenging for the surviving family and their personal injury lawyer.  The family must cope with the immediate, tragic loss of a loved one.  They have the added burden of realizing that the death could have been prevented.    This is an extremely stressful and emotional time.  Only an experienced California wrongful death lawyer with expertise in this area of law should represent you. We can handle everything.  You and your family should focus on grieving and putting your life back in order.

Experienced Wrongful Death Lawyers in Los Angeles

Wrongful death is defined as the loss of life wrongfully caused by another’s negligence. The claim is brought by those with standing. This is complicated analysis discussed above.  Plaintiffs can include spouse, children and parents of the deceased.  These heirs are entitled to “general” damages for loss of their loved one, as well as funeral expenses and lost financial support.

Wrongful Death Cases Occur in Many Different Contexts, Including:

• Automobile, truck and motorcycle accidents
• Construction site accidents
• Industrial accidents
• Criminal acts
• Dangerous products
• Dangerous property conditions

Wrongful death cases are complicated as to who may bring the lawsuit.  They often involve complex medical issues.  Frequently there will be disputes over liability and insurance coverage. We understand the complexities involved in wrongful death cases.  Call us at (310) 226-7676 for a free initial consultation. We handle wrongful death cases on a contingency fee, with no attorney’s fees unless we recover .